By Sania Babirye
The loser in the Kampala central MP seat Nyanzi Fred Ssentamu of the National unity platform party has applied for a substituted legal order to allow him serve Kampala Central MP Muhammad Nsereko a copy of his Election petition challenging his victory through a news paper.
This is after Nyanzi claims that he has failed to get access to Nsereko or locate his whereabouts yet, by law, he must serve the respondent with a copy so that the respondent can respond to his allegations.
Nyanzi now wants Court to allow him to serve Nyanzi through newspapers.
A substituted legal order allows to serve a defendant through other means other than serving him personally.
On the 10th of this month, Nyanzi petitioned the high Court in Kampala challenging the victory of the incumbent Independent Muhammad Nsereko after Mengo magistrate court dismissed his application for a vote recount.
Nyanzi wants the high court to declare him as the validly elected MP for Kampala Central division or orders a recount or sets aside Nsereko’s victory and orders for a by election.
In his main petition filed today at the civil division of the high court, Nyanzi claims that the said election was not conducted in accordance with the electoral laws and that there was non compliance .
He further claims that failure by EC to conduct a free and fair elections affected the results in a substantial manner.
Nyanzi claims that seven presiding officers committed electoral offences by failing without lawful excuse to furnish true returns of the election results to the returning officer within the time in which they were required to furnish those returns.
He further accuses both the returning officer and the presiding officers of deliberately making wrong entries on the final tally sheets by posting wrong votes at ten respective polling stations and that there are several votes at various polling stations that were not included in the final tally sheet on top of defranchising many of his voters from casting their votes on the polling day.
Incumbent Muhammad Nsereko defeated five other candidates including Nyanzi with 16,998 while Nyanzi who came second scored 15,975 votes with a vote difference of 1021 votes.
On the 28th of January this year, the Mengo Chief magistrate court dismissed his application on ground that Nyanzi failed to adduce factual evidence to prove the alleged mal practices but only based his evidence on hear say.
The magistrate also faulted Nyanzi of failing to bring any of his alleged agent who were chased away and those who who were refused to sign on any of the declaration forms as alleged from the said polling stations and yet some of the agents he quotes in his affidavit signed on the declaration forms showing that they accepted the results as announced.
The Magistrate said that Nyanzi was just on a fishing expedition with no factual evidence but only hear say which court can not entertain and orders him to pay Nsereko all the money he has used in the said case.
Nyanzi had petitioned the magistrate court seeking a recount on grounds that the voting process and vote counting was marred with a lot of malpractices by both the electoral commission and Nsereko’s agents.
Nyanzi also claimed that some of his agents were denied access to polling stations like summit view, Nakasero 1 and 2 and Hoima flats among other polling stations on top of some declaration forms not have been signed on by his agents.
His lawyer Anthony Wameeli told court that they are seeking a recount in 58 polling stations because a total of 2577 ballots could not be accounted for and that the difference in figures can not be explained by EC.
He also stated that the electoral commission connived with Nsereko’s agents to chase away his agents from polling stations and as a result and this helped them to alter the results.
However, Nsereko’s defense team led by Bernard Mutyaba asked court to dismiss the said application saying the applicant failed to adduce physical evidence to prove the alleged malpractices but instead is just basing his evidence on hear say.
He submitted that the application is defective and lacks merit since it does not have sufficient documents to support their allegations.
Electoral Commission’s lawyer Hamid Lugoolobi also asked for dismissal since the court had no jurisdiction to hear the said application after the returning officer declared the winner and results transmitted to EC.
He added that by the law, Nyanzi should have informed the returning officer of his plans to challenge the election which would have made the returning officer to delay the declaration for seven days to allow a vote recount by the magistrate court.